Edgarange Pty Ltd v Pretirement Villages Pty Ltd [2012] QDC 326

1-1 [2012] QDC 326 DISTRICT COURT JUDGE ROBIN QC Appeal No 918 of 2011 EDGARANGE PTY LTD (ACN 010 272 849) Plaintiff and PRETIREMENT VILLAGES PTY LTD Defendant BRISBANE ..DATE 26/10/2012 ORDER CATCHWORDS Uniform Civil Procedure Rules 1999 r 5, r 192, r 194 Whether leave to bring third party proceedings out of time should be granted - matter on commercial list, with tentative trial dates fixed for next year - defendant dilatory - third party proceedings will cause delay - defendant allowed only a very short time to join and serve third parties, otherwise will have to institute a separate proceeding -- 1 of 9 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is a defendant's application for leave to file a third party notice under rule 194, with leave being required because the defendant is late from the point of view of getting third party proceedings underway within the time allowed by the rules. As it happens, it wasn't until a request for trial date was submitted to the defendant for signature and a rule 444 letter sent preliminary to an application to the Court by the plaintiff that the defendant alerted the plaintiff to the determination to institute, or to the possibility of third party proceedings. An application of the present kind under rule 194(2) had to be served on the plaintiff and it has been. The application comes on within the time allowed by me when the matter was listed on the commercial list. The defendant's expectation that a third party notice and statement of claim would be ready, as deposed to in Mr Wilson's affidavit filed on the 19th of October, has not been realised, this being attributed to various difficulties, including illness and pressure of other work of counsel. The latter has lead to Mr Thomson coming in to the matter very recently, but his diary is in a state that leads him to ask the Court to allow until the 23rd of November for the important task of drafting third party proceedings which, of course, include the notice and a statement of claim that would have to be served with it. -- 2 of 9 -- 1-3 ORDER 1 10 20 30 40 50 60 I accept that the factual matrix, also perhaps the legal one which the pleader has to face, is not without complexity. Nonetheless, the delay here is embarrassing from the point of view of the plaintiff's claim being tried reasonably expeditiously. My hope had been that third party proceedings would have been served by now - giving a prospect but, of course, not assurance that the third parties' attitude to the Court having fixed trial dates next year commencing on the 4th of February would be made known. I fixed those dates expecting that it was likely they would require to be vacated and replaced by other dates. When Mr Stretton appeared on the last occasion, it was considerations of the third party's ability to prepare for trial that formed the basis of his resisting the fixing of dates. As things stand, today we have not only ignorance of third party's, single or plural, views, but even of the precise claim which will be made in the third party proceedings. It's part of the defendant's application to have the trial dates vacated. My declining to do that is, of course, not an irrevocable decision. I think it's convenient, though, to have dates reserved as a way of getting a foot in the door, so to speak, for allocation of later dates. The plaintiff seeks payment of $300,000 which is the balance of what I understand to have been an agreed price of $350,000 -- 3 of 9 -- 1-4 ORDER 1 10 20 30 40 50 60 for works which it was to do in the road reserve which formed the frontage of its development site and the defendant's development site which adjoined. The cost of the works, which somehow was fixed at $700,000, was to be borne by the plaintiff as it has been, and it was to receive $350,000 payment in staged instalments. All that was received as a down payment of $50,000. All of this happened in 2010, a long time ago now. The defendant's point has been that the works actually done differed from those which it expected would be done; Mr Thomson has referred to relocation by some eight metres of an intersection. As the matter is presented from the Bar table today, what may have occurred was that preliminary plans on which the defendant placed reliance were altered to meet requirements of the Redland Council which found their way into the approved plans. It's not suggested that the work was constructed other than in accordance with the approved plans, which apparently incorporated benefits, such as preservation of some trees. There was a counterclaim filed on the 11th of May 2011 which I've not perused in detail but which is taken to contend that the changes to the works had serious consequences for the defendant's development which it was discovered couldn't be constructed in the way originally contemplated, Mr Thomson tells me that there are interest components and the like in -- 4 of 9 -- 1-5 ORDER 1 10 20 30 40 50 60 the counterclaim flowing from the delay which the defendant complains of. The point of the third party proceedings is to seek redress from the defendant's consultant, Mr Stringer, and/or his company should there be liability to the plaintiff. The foundation seems to be a Trade Practices Act - type one, it being contented that Mr Stringer misled the defendant to its cost by not alerting it to the changes made to the works in the road reserve. Mr O'Higgins for the plaintiff in opposing today's application submits that Rule 192 is not satisfied here, most pertinently that the Trade Practices type claim is not one sufficiently related to or connected with the original subject matter of the proceeding which he says is the contract between the parties. He says it's difficult to identify any question or issue to satisfy Rule 192(c). There seem to me to be close questions here. Be that as it may, the real question is whether the Court ought to exercise a discretion it has about granting leave which has become necessary under Rule 194. Essentially a balancing exercise is involved, balancing the convenience and economy of having everything determined at a single hearing against countervailing factors which are typically, and here that's the situation, the delay to the plaintiff whose claim on the face of things would seem to be a strong one. It pleads that it has acknowledgements of the debt. -- 5 of 9 -- 1-6 ORDER 1 10 20 30 40 50 60 The Court can't determine whether that's so today. My inclination, as I think was made clear on the last occasion, was to permit the defendant to expand this proceeding by bringing in the third party, notwithstanding the large dimensions of its delay. I think Mr O'Higgins is right that thought ought to have been given to bringing in the third party at the time when the defence and counterclaim were being prepared. The defendant's performance since the request for trial date was transmitted is far from impressive from the point of view of the proceeding being conducted expeditiously; litigants are expected to cooperate in that respect by the UCPR and their underlying philosophy set out in rule 5. The Court has been referred to decisions in which leave under rule 194 was refused to defendants guilty of delay comparable with that encountered here. I refer to MGM Containers Pty Ltd v Wockner [2006] QCA 502, Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd [2001] QCA 48 and more recently Daubney J's decision in Villinger Group Limited v Redmond [2009] QSC 60. Those decisions show that leave is not to be had simply for the asking. I had noted apropos Villinger Group that at paragraph 14 his Honour stated that the claim against the present defendants was ready to be set down for trial. Although there are “fixed” trial dates, that's not necessarily -- 6 of 9 -- 1-7 ORDER 1 10 20 30 40 50 60 the situation here. In the circumstances of the decisions enumerated, the defendants were required to bring separate proceedings against the person or persons against they wished to seek some redress. That may well be the outcome here. If things so turn out, I think the Court should be receptive to an application by the defendant, provided it's made at a convenient time and offers reasonable expedition overall, for the new proceeding and the current one to be heard together. The advantages of a single hearing are obvious and considerable as illustrated by Pioneer Concrete NT Pty Ltd v Watkins Limited [1983] 66 FLR 279. The defendant may find it a Herculean task to achieve the desideratum of a single hearing in the present matter. I don't think the plaintiff ought to be delayed to the extent that appears inevitable if the defendant's application before the Court today succeeds in its entirety. I reiterate that the trial dates fixed are flexible, but only likely to be changed if that appears generally in the interests of the litigants affected. I am prepared to allow the defendant a last brief window of opportunity to avail itself of third party processes. Accordingly, the order I propose is that there be leave to the defendant to file a third party notice on or before but not -- 7 of 9 -- 1-8 ORDER 1 10 20 30 40 50 60 after 31st October 2012. Pursuant to rule 194(4), order that such notice be served no later than 2nd of November 2012. I order that the proceeding be mentioned on a date which I shall shortly identify. Apropos service, the understanding at today's hearing has been that there are two potential third parties, namely Mr Stringer and his company. Service on the company ought to be a straightforward matter occasioning no difficulty. I've confirmed my intimation to Mr Thomson that, as I understand the circumstances of his continuing connection with the company, if there's any difficulty at all in effecting service on Mr Stringer, I would be amenable to making an order for substituted service of third party proceedings on him. What would be a sensible date? You are the plaintiff, Mr O'Higgins. MR O'HIGGINS: I suppose a sensible date might be at some point after one could expect the third parties' defence. HIS HONOUR: So maybe the 30th of November? Well, that's what it will be. MR O'HIGGINS: I think that works, your Honour. HIS HONOUR: It may be a day earlier but that's a Friday, isn't it? The dates I've picked are typically Fridays. MR O'HIGGINS: I think the 30th of November would be suitable. MR THOMSON: That would seem to make sense. Allow 28 days to elapse and then have it returnable soon thereafter. HIS HONOUR: Well, if it's served on the 1st of November, which I hope would happen, then the 28 days will expire on the 29th. So the 30th should be fine. -- 8 of 9 -- 1-9 ORDER 1 10 20 30 40 50 60 MR THOMSON: Yes. HIS HONOUR: You might be able to get default judgment, Mr Stringer. I grant liberty to apply. ... HIS HONOUR: The plaintiff's costs of the application will be its costs in the cause. ---- -- 9 of 9 --